A. Application Before an Immigration Judge
C. Subsequent Hearing
D. While a Bond Appeal is Pending
E. Non-Mandatory Custody Aliens
F. Mandatory Custody Aliens
G. An Immigration Judge May Not Redetermine Custody Status
H. Significant Factors in a Bond Determination
I. Less Significant Factors in a Bond Determination
A. APPLICATION BEFORE AN IMMIGRATION JUDGE
The controlling provisions for bond/custody redetermination hearings before an Immigration Judge are found at INA § 236; 8 C.F.R. §§ 1003.19 and 1236.1 (2006). The bond hearing is separate and apart from, and shall form no part of the removal hearings. 8 C.F.R. § 1003.19(d) (2006). The application for a bond redetermination hearing is made to one of the following offices, in the following order prescribed at 8 C.F.R. § 1003.19 (2006):
1. If the alien is detained, to the Immigration Court that has jurisdiction over the place of detention. Note: the filing of a charging document is not a prerequisite to bond hearing jurisdiction. See Matter of Sanchez, 20 I&N Dec. 223, 225 (BIA 1990);
2. To the Immigration Court that has administrative control over the case. See 8 C.F.R. § 1003.13 (2006); or,
3. To the Office of the Chief Immigration Judge (OCIJ) for designation of the appropriate Immigration Court to accept and hear the application.
1. After the DHS makes its initial custody determination, and
2. Before an administratively final order of deportation or removal. 8 C.F.R. §§ 1236.1, 1003.19 (2006); Matter of Valles, 21 I&N Dec. 769, 771 (BIA 1997); Matter of Uluocha, 20 I&N Dec. 133, 134 (BIA 1989); Matter of Sio, 18 I&N Dec. 176, 177 (BIA 1981); Matter of Vea, 18 I&N Dec. 171, 173 (BIA 1981).
C. SUBSEQUENT HEARING
The Immigration Judge may conduct a subsequent custody hearing so long as the request is made in writing and based on a showing that the alien’s circumstances have
changed materially since the initial bond redetermination hearing. 8 C.F.R. § 1003.19(e) (2006); Matter of Uluocha, 20 I&N Dec. 133 (BIA 1989).
D. WHILE A BOND APPEAL IS PENDING
When appropriate, an Immigration Judge may entertain a bond redetermination request, even when a previous bond redetermination by the Immigration Judge has been appealed to the Board of Immigration Appeals (BIA). Matter of Valles, 21 I&N Dec. 769 (BIA 1997). If a bond redetermination request is granted by an Immigration Judge while a bond appeal is pending with the BIA, the appeal is rendered moot. Id. If an Immigration Judge declines to change the amount or conditions of bond, the DHS must notify the BIA in writing, with proof of service on the opposing party, within 30 days, if it wishes to pursue its original bond appeal. Id.
E. NON-MANDATORY CUSTODY ALIENS
1. Neither section 236(a) of the Act nor the applicable regulations confer on the alien the right to release on bond. In re D-J-, 23 I&N Dec. 572 (A.G. 2003). The denial of a
respondent’s release on bond does not violate international law. Id.
2. For non-mandatory custody aliens, Immigration Judges can: (1) continue to detain; or (2) release on bond of not less than $1,500.00. INA § 236(a). Note: Immigration
Judges do not have authority to consider or review DHS parole decisions.
3. Section 236(a) of the Act does not provide for the release of an alien on the alien’s own recognizance.
4. Under BIA case law addressing general bond provisions of prior law, an alien ordinarily would not be detained unless he or she presented a threat to national security or a
risk of flight. See Matter of Patel, 15 I&N Dec. 666 (BIA 1976). By virtue of 8 C.F.R. § 1236.1(c)(8) (2006), a criminal alien must demonstrate that he is not a threat to the
national security, that his release would not pose a danger to property or persons, and that he is likely to appear for any future proceedings. Matter of Guerra, 24 I&N Dec.
37 (BIA 2006); Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999). But see In re D-J-, 23 I&N Dec. 572 (A.G. 2003).
5. Juveniles (i.e., under 18) have special conditions of release. See 8 C.F.R. § 1236.3 (2006).
a. Juveniles, in addition to having monetary bond, will have conditions of release in that they can only be released, in order of preference, to :
i. a parent,
ii legal guardian, or
iii. adult relative.
b. The regulation governing juvenile conditions of release is quite detailed and specific. There is no authority for the Immigration Judge to fashion independent
conditions of release. See also In Re Mejia- Andino, 23 I&N Dec. 533 (BIA 2002); Matter of Amaya, 21 I&N Dec. 583 (BIA 1996).
F. MANDATORY CUSTODY ALIENS
1. The Immigration Court has no bond/custody redetermination authority over those aliens defined in section 236(c)(1) of the Act unless it falls within the enumerated exception. The exception provides that the alien may be released if it is necessary to provide protection to a witness, a potential witness, a person
cooperating with an investigation into major criminal activity, or to protect an immediate family member of such witness. The alien must satisfy the Attorney General that he or she will not pose a danger to the safety of other persons or of property and is likely to appear for hearings.
2. However, an alien may request a hearing before an Immigration Judge to contest the INS determination that he or she is subject to mandatory detention under section 236(c)(1) of the Act. See 8 C.F.R. §§ 1003.19(h)(1)(ii), 1003.19(h)(2)(ii) (2006).
3. An alien is not subject to mandatory detention under section 236(c) of the Act if he was released from his non-Service custodial setting on or before October 1998, the
expiration date of the Transition Period Custody Rules. Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999).
4. Section 236(c)(1) of the Act provides that the Attorney General shall take into custody any alien when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense, who is inadmissible by reason of having committed any offense covered in section 212(a)(2) of the Act. This includes:
Conviction or sufficient admission of CIMT
Conviction of controlled substance violation
Multiple criminal convictions with aggregate sentences of 5 years
Controlled substance traffickers and certain immediate relatives
Prostitution and commercialized vice
Certain aliens involved in serious criminal activity who have asserted immunity from prosecution
Foreign government officials who have engaged in particularly severe violations of religious freedom.
b. Is deportable by reason of having committed any offense in section 237(a)(2)(A)(ii) [two or more CIMTs], (A)(iii) [Conviction of aggravated felony], (B) [Conviction of
controlled substance violation; drug abusers and addicts], (C) [Conviction of firearms offense], or (D) [Certain enumerated convictions].
c. Is deportable under section 237(a)(2)(A)(i) [CIMT] on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or
d. Is inadmissible under section 212(a)(3)(B) of the Act or deportable under section 237(a) (4)(B) of the Act [Terrorist activity].
5. Where the District Director has denied the alien’s request for release or has set a bond of $10,000 or more, any order of the Immigration Judge authorizing release shall be stayed upon the Service’s filing of Form EOIR-43 with the Immigration Court on the day the order is issued, and the decision shall be held in abeyance pending decision on the appeal by the BIA. 8 C.F.R. § 1003.19(i)(2) (2006); Matter of Joseph, 22 I&N Dec. 660 (BIA 1999), clarified, Matter of Joseph, 22 I&N Dec. 799 (BIA 1999).
G. WHEN AN IMMIGRATION JUDGE MAY NOT REDETERMINE CUSTODY STATUS:
1. On the Judge’s own motion. Matter of P-C-M-, 20 I&N Dec. 432 (BIA 1991). The application must be made by the alien or the alien’s counsel or representative. 8 C.F.R. §1003.19(b) (2006).
2. If the alien is not in DHS custody (e.g., alien is in state custody). Matter of Sanchez, 20 I&N Dec. 223 (BIA 1990).
3. If more than 7 days have elapsed since the alien was released from DHS custody. 8 C.F.R. § 1236.1(d) (2006); Matter of Valles, 21 I&N Dec. 769 (BIA 1997); Matter of Daryoush, 18 I&N Dec. 352 (BIA 1982); Matter of Sio, 18 I&N Dec. 176, 177 (BIA 1981); Matter of Vea, 18 I&N Dec. 171, 173 (BIA 1981). After the expiration of the 7-day period the respondent may request review by the District Director. 8 C.F.R. § 1236.1(d)(2) (2006).
4. The following aliens have no recourse to the Immigration Court for bond hearing:
a. The arriving alien in removal proceedings, including aliens paroled after arrival under section 212(d)(5) of the Act;
b. The alien in claimed status proceedings;
c. The alien in credible fear proceedings;
d. The alien in exclusion proceedings;
e. The alien in summary removal proceedings.
f. An aggravated felon alien in expedited removal proceedings under section 238 of the Act.
5. Neither an Immigration Judge nor the BIA has authority to adjudicate parole matters. Matter of Oseiwusu, 22 I&N Dec. 19 (BIA 1998); Matter of Matelot, 18 I&N Dec. 334, 336 (BIA 1982); Matter of Castellon, 17 I&N Dec. 616 (1981). A returning permanent resident alien is regarded as an “arriving alien” seeking admission if he falls within one of the following categories of section 101(a)(13)(C) of the Act:
a. has abandoned or relinquished that status;
b. has been absent from the United States for a continuous period in excess of 180 days;
c. has engaged in illegal activity after having departed the United States;
d. has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under the INA and extradition proceedings;
e. has committed an offense identified in section 212(a)(2) of the Act, unless since such offense the alien has been granted relief under sections 212(h) or 240A(a) of the Act, or;
f. is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.
6. If the alien has an administratively final order of removal or deportation. INA § 241; 8 C.F.R. § 1236.1(d)(1) (2006); Matter of Valles, 21 I&N Dec. 769, 771 (BIA 1997); Matter of Uluocha, 20 I&N Dec. 133, 134 (BIA 1989); Matter of Sio, 18 I&N Dec. 176, 177 (BIA 1981); Matter of Vea, 18 I&N Dec. 171, 173 (BIA 1981). After an order becomes
administratively final, the respondent may seek BIA review of the District Director’s or Immigration Judge’s custody determination. 8 C.F.R. § 1236.1(d)(3) (2006).
H. SIGNIFICANT FACTORS IN A BOND DETERMINATION
1. Fixed address in the United States. Matter of Guerra, 24 I&N Dec. 37 (BIA 2006); Matter of Patel, 15 I&N Dec. 666 (BIA 1979).
2. Length of residence in the United States. Matter of Guerra, 24 I&N Dec. 37 (BIA 2006); Matter of Andrade, 19 I&N Dec.488 (BIA 1987); Matter of Shaw, 17 I&N Dec. 177 (BIA 1979).
3. Family ties in the United States, particularly those who can confer immigration benefits on the alien. Matter of Guerra, 24 I&N Dec. 37 (BIA 2006); Matter of Andrade, 19 I&N Dec.488 (BIA 1987); Matter of Shaw, 17 I&N Dec. 177 (BIA 1979); Matter of Patel, 15 I&N Dec. 666 (BIA 1979).
4. Employment history in the United States, including length and stability. Matter of Guerra, 24 I&N Dec. 37 (BIA 2006); Matter of Andrade, 19 I&N Dec.488 (BIA 1987); Matter of Shaw, 17 I&N Dec. 177 (BIA 1979); Matter of Patel, 15 I&N Dec. 666 (BIA 1979).
5. Immigration Record. Matter of Guerra, 24 I&N Dec. 37 (BIA 2006); Matter of Andrade, 19 I&N Dec.488 (BIA 1987); Matter of Shaw, 17 I&N Dec. 177 (BIA 1979); Matter of San Martin, 15 I&N Dec. 167 (BIA 1974); Matter of Moise, 12 I&N Dec. 102 (BIA 1967).
6. Attempts to escape from authorities or other flight to avoid prosecution. Matter of Guerra, 24 I&N Dec. 37 (BIA 2006); Matter of Patel, 15 I&N Dec. 666 (BIA 1979); Matter of San Martin, 15 I&N Dec. 167 (BIA 1974).
7. Prior failures to appear for scheduled court proceedings. Matter of Guerra, 24 I&N Dec. 37 (BIA 2006); Matter of Andrade, 19 I&N Dec.488 (BIA 1987); Matter of Shaw, 17 I&N Dec. 177 (BIA 1979); Matter of Patel, 15 I&N Dec. 666 (BIA 1979); Matter of San Martin, 15 I&N Dec. 167 (BIA 1974).
8. Criminal record, including extensiveness and recency, indicating consistent disrespect for the law and ineligibility for relief from deportation/removal. Matter of Guerra, 24 I&N Dec. 37 (BIA 2006); Matter of Andrade, 19 I&N Dec. 488 (BIA 1987).
I. LESS SIGNIFICANT FACTORS IN A BOND DETERMINATION
1. Early release from prison, parole, or low bond in related criminal proceedings. Matter of Andrade, 19 I&N Dec. 488 (BIA 1987); Matter of Shaw, I&N Dec. 177 (BIA 1979).
2. Ability to pay is not dispositive.
3. DHS difficulties in executing a final order of deportation. Matter of P-C-M, 20 I&N Dec. 432 (BIA 1991).
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